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THE 

RECALL OF JUDGES 


BY. 


ALBERT FINK 

OF THE ALASKA BAR 



THE JAMES H. BARRY CO. 
1122-1124 Mission Street 
San Francisco 










\ 








The Recall of Judg es 


The constitution adopted by Arizona provides for 
the recall of the judges. In California the Legisla¬ 
ture has proposed an amendment to the State Consti¬ 
tution calculated to accomplish a like result. This will 
meet the approval of the present executive, and be sub¬ 
mitted to the people for acceptance or rejection at an 
election to be held for this purpose in September or 
October of this year. Present indications are that it 
will carry, and thus become a part of the organic law 
of this State. 

This principle in the science of government has never 
received the test of actual trial, and its beneficial or 
pernicious influence rests upon speculative reasoning 
rather than upon any facts to be gathered from expe¬ 
rience. 

It would seem wise to remember the words of Mr. 
Lincoln: 

“I do not mean to say we are bound to follow 
implicitly in whatever our fathers did. To do so 
would be to discard all the lights of current experi¬ 
ence—to reject all progress, all improvement. 
What I do say, is, that if we would supplant the 
opinions and policy of our fathers in any case, we 
should do so upon evidence so conclusive and argu- 



2 


ment so clear, that even their great authority, fairly 
considered and weighed, cannot stand.” 

The application of this doctrine to the judiciary, it 
is thought, would be, if not repugnant to the express 
terms of the Federal Constitution, at least violative of 
its spirit. In any event such a measure is believed to 
be most inexpedient, and incapable of justification, 
either upon principle, or experience. It is regarded by 
some, at least, as a most disastrous experiment in gov¬ 
ernment. 

The Federal Constitution provides: 

“The United States shall guarantee to every State 
in this Union a Republican Form of Government.” 

The questions which present themselves are: first— 
Is the independence of the judiciary one of the neces¬ 
sary and essential elements of a Republican form of 
government? and secondly—Is the proposed recall of 
the judges, without charges against them preferred, 
without trial or evidence, and without cause, other than 
the mere will of the majority of the electorate, that is 
to say, the dominant party, destructive of their inde¬ 
pendence? 

If these questions are answered in the affirmative, it 
would seem to follow that the principle contended for 
would be within the inhibition of the section above 
quoted. 

The first consideration invites an investigation of the 


) 


3 

proper construction of the phrase, “a Republican Form 
of Government.” 

Though this clause of the Constitution has never been 
directly construed, it has been adverted to in several 
cases by the Supreme Court: 

In Downes vs. Bidwell Mr. Justice Brown said: 

“A republican form of government is one in 
which the supreme power resides in the whole body 
of the people, and is exercised by the representatives 
elected by them” 

In Duncan vs. McCall, it was held that: 

“The distinguishing feature of that form is the 
right of the people to choose their own officers for 
governmental administration, and pass their own 
laws in virtue of the legislative power reposed in 
representative bodies, whose legitimate acts may be 
said to be those of the people themselves.” 

From these definitions, it would appear that a Re¬ 
publican form of government is one in which the power 
resides in the people, and exercised through chosen 
delegates, and not by direct action of the electorate. 

Or, as stated by Judge Watson, in his recent very 
excellent work on the Constitution: 

“From these comments, we may conclude that a 
republican form of government is one in which the 
people elect their law-makers and their public offi¬ 
cers.” 


4 


In Miner vs. Happersett, when considering the right 
of a female citizen of Missouri to vote, Chief Justice 
Chase said: 

“The guaranty is of a republican form of gov¬ 
ernment. No particular government is designated 
as republican, neither is the exact form to be guar¬ 
anteed, in any manner especially designated. Here, 
as in other parts of the instrument, we are compelled 
to resort elsewhere to ascertain what was intended. 
The guaranty necessarily implies a duty on the part 
of the States themselves to provide such a govern¬ 
ment. All the States had governments when the 
Constitution was adopted. In all, the people par¬ 
ticipated to some extent, through their representa¬ 
tives. These governments, the Constitution did not 
change. They were accepted precisely as they 
were, and it is therefore to be presumed, that they 
were such as it was the duty of the States to pro¬ 
vide. Thus we have unmistakable evidence of what 
was republican in form, within the meaning of that 
term as employed in the Constitution.” 

Thus in any investigation of a given case, resort must 
be had elsewhere than to the Constitution itself to as¬ 
certain what is meant by the phrase in question. Where 
shall we go? 

Judge Watson says: 

“What form of government was understood by the 
framers of the Constitution to be meant by this guar¬ 
antee? It is entirely probable that the States had 
in mind forms of government similar to those then 


5 


existing. In other words, a republican form of gov¬ 
ernment within the meaning of this clause is to be 
tested by the question, whether or not such a gov¬ 
ernment conforms to the State governments which 
existed at the time the Union was formed.” 

Mr. Calhoun said: 

“In other words, the forms of the governments of 
the several States, composing the Union as they 
stood at the time of their admission are the proper 
standard by which to determine whether any after 
change in any of them makes its form of govern¬ 
ment other than republican.” 

Writing for the Federalist, Mr. Madison said: 

“But who can say what experiments may be pro¬ 
duced by the caprice of particular States, by the 
ambition of enterprising leaders, or by the intrigue 
and influence of foreign powers? 

“As long, therefore, as the existing republican 
forms are continued by the States, they are guaran¬ 
teed by the federal Constitution. 

“The only restriction imposed on them is this, 
that they shall not exchange republican for anti- 
republican constitutions; a restriction which, it is 
presumed, will hardly be considered as a griev¬ 
ance.” 

It is, of course, admitted that a State may change 
from one republican form to another. It may even 
be conceded that if the general form be republican, a 
State may, in minor or unimportant particulars, adopt 


6 


either the monarchical or democratic principle. But, 
it is contended that the independence of the judiciary is 
an element of such cardinal importance as to change the 
form when destroyed. 

A most casual glance into the history of the forma¬ 
tive period of the Constitution will indicate that noth¬ 
ing could have been further from the contemplation of 
the framers of that instrument, than any rendering of 
the judiciary, during their term of office, subservient to 
the will of a majority. The period of quasi-anarchy, 
existing between the latter years of the Revolution and 
the adoption of the Constitution, was replete with events 
well calculated to impress the subsequent framers of 
the Constitution. 

A monarchical form of government was out of the 
question. They had just emerged from a bloody war 
brought on largely by the personal reign of a Prince. 
On the other hand, the Trespass Acts of New York; 
the “Know Ye” measures of Rhode Island; the laws 
of Massachusetts, Pennsylvania, Maryland, Virginia 
and South Carolina obstructing the collection of Brit¬ 
ish debts; the craze for paper money, and “Shay’s Re¬ 
bellion,” were incidents that inspired a wholesome 
dread of democracy uncurbed and unrestrained. The 
attitude of the patriots towards this form of govern¬ 
ment may be gathered from some of their utterances. 

In the Philadelphia convention, Elbridge Gerry 
said: 


7 


“The evils we experience flow from the excess of 
democracy. The people do not want virtue, but are 
the dupes of pretended patriots.” 

John Randolph observed: 

“That the general object was to provide a cure 
for the evils under which the United States labored; 
that in tracing these evils to their origin, every man 
had found it in the turbulence and follies of democ¬ 
racy; that some check therefore was to be sought 
for against this tendency of our governments.” 

Alexander Hamilton said: 

“Give all the power to the many, they will oppress 
the few; give all power to the few, they will oppress 
the many; both therefore, ought to have the power, 
that each may defend itself against the other. To 
the want of this check, we owe our paper money, 
instalment laws, etc. 

“Gentlemen differ in their opinions concerning 
the necessary checks, from the different estimates 
they form of the human passions. They suppose 
seven years a sufficient period to give the Senate an 
adequate firmness, from not duly considering the 
amazing violence and turbulence of the democratic 
spirit. When a great object of government is pur¬ 
sued, which seizes the popular passions, they spread 
like wild fire and become irresistible.” 

It was principally upon the failure of the Constitu¬ 
tion to sufficiently recognize the democratic principle 
as contradistinguished from the republican, which pro- 


8 


voked the assaults of such men as Luther Martin, 
George Mason, Patrick Henry, and Richard Henry 
Lee. 

In a letter to Edmund Randolph, Richard Henry 
Lee said: 

“The only check to be found in favor of the dem¬ 
ocratic principle in this system, is the House of 
Representatives.” 

Of Gouverneur Morris, Mr. Madison said: 

“He contended for certain articles which he held 
essential to the stability and energy of a government 
capable of protecting rights of property against the 
spirit of democracy.” 

The then understood distinction between a republi¬ 
can and democratic form of government was well point¬ 
ed out by Mr. Madison: 

“From this view of the subject, it may be con¬ 
cluded that a pure democracy, by which I mean a 
society consisting of a small number of citizens, who 
assemble and administer the government in person, 
can admit of no cure for the mischiefs of faction. 
A common passion or interest will, in almost every 
case, be felt by a majority of the whole; a communi¬ 
cation and concert result from the form of govern¬ 
ment itself; and there is nothing to check the in¬ 
ducements to sacrifice the weaker party or an ob¬ 
noxious individual. Hence it is that such democ¬ 
racies have ever been spectacles of turbulence and 
contention; have ever been found incompatible with 


9 


personal security or the rights of property, and have 
in general been as short in their lives as they have 
been violent in their deaths. 

“A republic, by which I mean a government in 
which the scheme of representation takes place, 
opens a different prospect, and promises the cure 
for which we are seeking. Let us examine the 
points in which it differs from the pure democracy, 
and we shall comprehend both the nature of the cure 
and the efficacy which it must derive from the 
Union. 

“The two great points of difference between a 
democracy and a republic are: first, the delegation 
of the government in the latter to a small number of 
citizens elected by the rest; . . . 

“The effect of the first difference is, on the one 
hand, to refine and enlarge the public views, by 
passing them through the medium of a chosen body 
of citizens, whose wisdom may best discern the true 
interest of their country, and whose patriotism and 
love of justice will be least likely to sacrifice it to 
temporary or partial considerations. Under such a 
regulation, it may well happen that the public voice, 
pronounced by the representatives of the people, will 
be more consonant to the public good than if pro¬ 
nounced by the people themselves, convened for the 
purpose.” 

Certainly the fundamental distinctions existing be¬ 
tween the several forms of government was well un¬ 
derstood, nay, perhaps, to the general public, better 
than in this era of mercenary thought and highly spe¬ 
cialized learning and culture. 


10 


To the members of the Philadelphia convention, the 
experiments of early Greece in almost every conceivable 
form of government were known. The primal causes 
of creation, as well as those of decay and consequent 
destruction, were matters of daily comment. The so- 
called “Republics of Venice,” the Cantons of Switzer¬ 
land, the United Netherlands, and the Confederated 
Principalities of Germany, were matters of frequent de¬ 
bate. Comparison of the government proposed for this 
country with that of England was a constant theme. 
Excerpts from Sir William Blackstone, Aristotle and 
Montesquieu, were of universal quotation. 

Nor was this learning the result of precursory college 
reading, such as we find in the present age. The prece¬ 
dents and the underlying principles were deeply studied 
and distinguished by men in the full prime of intellec¬ 
tual vigor engaged in the task of sifting from the true, 
the false, and in erecting for posterity, from the com¬ 
bined thought and experience of all the bygone cen¬ 
turies such a form of government as would, while real¬ 
izing the most sanguine dreams of the ancients, avoid 
those hidden reefs upon which so many previous con¬ 
stitutions had come to grief. 

So well was this great task performed that since their 
day men have ceased to busy themselves with the sci¬ 
ence of creating government as distinguished from its 
administration, and the general learning and culture 
then prevalent have, in a large measure, departed from 
the land. 


II 


The illuminating precedents of history have been all 
but forgotten, and of the present members of the several 
State Legislatures, it would indeed be a difficult task to 
find many, who so far from being familiar with ac¬ 
cepted axioms of government, have even read the recog¬ 
nized authorities upon the subject. 

We have been following a trail blazed for us by abler 
men, made so perhaps by command of a more impera¬ 
tive historical crisis; and when it is proposed to depart 
therefrom and enter new and untried bridle-paths, it 
were well to do so with all the consideration and careful 
examination of principles and precedents which guided 
our forefathers, and not as a mere temporary expedient 
against an alleged dominant corporate influence—bad 
as that may be. 

Nowadays we take too much for granted. Lulled to 
sleep by the unparalleled prosperity we have enjoyed 
under the Constitution given us by the Fathers, we are 
prone to believe that human rights and liberties have 
become so secure as to be in no further need of protec¬ 
tion either from the tyranny of a dictator or from that 
of an unrestrained democracy. Seeing in our path cer¬ 
tain resultant evils of our very prosperity, we would, 
in a sudden moment, lay rude hands upon that instru¬ 
ment under which all this progress has been made possi¬ 
ble, without pausing to reflect that the evils might be 
eliminated without recourse to a change in the Consti¬ 
tution; and that by the later experiment though the 
evils might be curtailed, the prosperity might be lost. 


12 


One of our most distinguished citizens is reported to 
have said that “republics are still upon trial” 

It would seem a violent presumption to say that in 
using the phrase “a Republican Form of Government,” 
our forefathers did not have in mind the distinction be¬ 
tween a democracy and a republic; yet, this proposed 
recall of the judges, so far from being republican in 
its characteristics, is of the very purest democracy. 

It is to be remembered that the form of government 
selected was new. It had never before been tried. It 
was an admixture of one great republic with a con¬ 
federacy of smaller republics, which in combination 
partook in certain aspects of the nature of the former, 
while in others, of an alliance of the latter. The sys¬ 
tem was novel. It was complex. It sought to em¬ 
brace all the desirable features of former governments 
while discarding the questionable or dangerous ele¬ 
ments. Thus the plan advocated by Hamilton was re¬ 
jected as being too monarchical, while the suggestion to 
make both branches of Congress elective directly by the 
people was discarded as being too democratic in its ten¬ 
dency. 

It will be observed that it was not the intention of 
the framers of the Constitution to construct a govern¬ 
ment, either monarchical on the one hand, or demo¬ 
cratic on the other, but to find between these extremes 
some middle ground which would contain the execu¬ 
tive strength of the one, while avoiding the turbulent 
and disruptive tendencies of the other. And a Repub- 


13 


lie, where the government is shared in by all the citi¬ 
zens, and the laws enacted and enforced by representa¬ 
tives chosen by the people, was selected, as best calcu¬ 
lated to promote our welfare, and it was therefore a 
Republican Form of Government, as opposed to and 
contradistinguished from any other, that was guaran¬ 
teed to the several States. 

At the time of the adoption of the Constitution, each 
of the several States was Republican, and it was such a 
republican form of government as then existed, that was 
intended to be and was guaranteed to each. 

Certainly no one would contend that it would be 
within the power of the people of any State to so 
alter their present form of government as to place in 
the hands of one man, the executive, legislative and 
judicial power. And if, under the Constitution, the 
people of a State would not be permitted to change 
their present form of government to one of monarchical 
tendency, it is not quite clear why they should be per¬ 
mitted to swing in the opposite direction towards a pure 
democracy, without the provided for concurrence of a 
sufficient number of all the States. To preserve a re¬ 
publican form of government is an obligation which 
each State owes to all the others, and if this obligation 
is violated, the Federal Government will intervene. 

The complete and absolute independence of the judi¬ 
ciary was a political maxim of the period during which 
the Constitution was adopted. It was just as much an 
essential principle of a republican form of government 




as the representative scheme. It is sometimes said that 
the principle was that there was and should be a sever¬ 
ance between the executive, legislative and judicial 
branches of government. But the statement is, to a 
certain extent, inaccurate. The underlying principle 
was the independence of each. The severance was but 
the means to secure and enforce the principle. Than 
this principle of independence, none was more fully or 
firmly established in the science of government. It 
stood unchallenged. It had long been recognized in 
England, where, though it was at first believed that the 
tenure of judges was at the pleasure of the Crown, and 
that they were removable at the whim of the sovereign, 
this opinion had gradually changed, so that, by the end 
of the Sixteenth Century the independence of the judi¬ 
ciary was becoming a recognized principle of the Con¬ 
stitution. And it was the violation of this theory as 
much as any other one thing, and his attempted debase¬ 
ment to mere creatures of the Crown, of the judges of 
King’s Bench, that cost Charles the First his head. 
Evoked through the slow processes of evolution, which 
have characterized the formation of the British Consti¬ 
tution, this principle was crystallized into statute law 
during the reign of William III, when it was enacted, 
that the judges should not hold their office during the 
pleasure of the Crown, but so long as they should con¬ 
duct themselves properly. And during the reign of 
George III it was enacted that the commissions of the 
judges should read “during good behaviour,” excepting 


that they might be removed “upon the address of both 
houses of Parliament.” 

But here it was thought to attain both the practical 
and theoretical independence, and in this connection, it 
was pointed out by Mr. Wilson that Chief Justice Holt 
had successively offended both branches of Parliament 
by his independence, and if his judgments had occurred 
at the same time, he would have been liable to have 
been ousted for the performance of his duty. 

That this principle, or rather the means to enforce it, 
was well recognized in this country, cannot, for a mo¬ 
ment be doubted. It was embodied in several of the 
State constitutions. 

That of Maryland provided in the Declaration of 
Rights: “That the Legislature, executive and judicial 
powers of government, ought to be forever separate and 
distinct from each other”; that of New Hampshire pro¬ 
vided: “In the government of this State, the three 
“ essential powers thereof, to wit, the legislative, execu- 
“ tive and judicial, ought to be kept as separate from 
“ and independent of each other as the nature of a free 
“government will admit”; by that of Virginia and 
Georgia it was provided: “The legislative, executive 
“ and judiciary departments shall be separate and dis- 
“ tinct, so that neither exercise the powers properly be- 
“ longing to the other.” While that of Massachusetts 
of 1780 provided: 

“It is essential to the preservation of the rights 
of every individual, his life, liberty, property and 


i6 


character, that there be an impartial interpretation 
of the laws, and administration of justice. It is the 
right of every citizen to be tried by judges as free, 
impartial and independent as the lot of humanity 
will admit. It is therefore not only the best policy, 
but for the security of the rights of the people and 
of every citizen, that the judges of the supreme judi¬ 
cial court should hold their offices as long as they 
behave themselves well.” 

Montesquieu, who was held in the very greatest rever¬ 
ence, had written: 

“There is no liberty, if the judicial power be not 
separated from the legislative and executive. Were 
it joined with the legislative, the life and liberty of 
the subject would be exposed to arbitrary control; 
for the judge would then be the legislator. Were 
it joined to the executive power, the judge might 
behave with violence and oppression. Then would 
be an end of everything, were the same men or the 
same body to exercise these three powers, that of en¬ 
acting laws, that of executing them and of trying 
the cases of individuals.” 

To remove the judiciary beyond the possible control 
of a temporary majority, it was provided in each of 
the thirteen colonies except Georgia, that the judges be 
appointed, and, in the language of Mr. Fiske: 

“It was Georgia that, in 1812, first set the perni¬ 
cious example of electing judges for short terms by 
the people, a practice which is responsible for much 
of the degradation that courts have suffered in many 


i7 


of our States, and which will have to be abandoned 
before a proper administration of justice can ever 
be secured.” 

To further insure the independence of the judges, the 
tenure by which they held their offices, in each of the 
thirteen colonies, except Pennsylvania and New Jersey, 
was during good behavior, though, following the Eng¬ 
lish precedent, the constitutions of Massachusetts, New 
Hampshire and Delaware provided that they might be 
removed by the Governor upon the address of both 
branches of the Legislature. 

In the other colonies they were removable only for 
cause, and by the Constitution of Maryland, it was pro¬ 
vided that they could be “removed only for misbehavior 
on conviction in a court of law.” 

Taking the best that existed both in American and 
English precedents, the same principle was carried into 
the Federal Constitution, where good behavior was 
made the tenure, and the judges selected by appoint¬ 
ment. And, in the convention, Dickensen, while agree¬ 
ing that the terms of the judges should be during good 
behavior, thought they should be removable by the Ex¬ 
ecutive upon the address of the Senate and House of 
Representatives, after the manner prevailing in Eng¬ 
land; but Gouverneur Morris pointed out that such 
power of removal without trial, united with a tenure 
of office during good behavior, would be a contradic¬ 
tion in terms. 


In an instrument where almost every phase of its 
proper or possible construction was examined, analyzed, 
disputed and debated from Henry’s objections to the 
use of the expression “We the people” to Martin’s criti¬ 
cisms of the abolition of religious tests, it is interesting to 
note that the provisions with reference to the selection 
and tenure of the judges was agreed to without a dis¬ 
senting voice. Whatever conflict may have existed 
upon other points, it is clear, that in a republican gov¬ 
ernment an independent judiciary was a cardinal and 
essential principle was a proposition agreed to by all. 

In speaking of the matter, Hamilton said: 

“The complete independence of the courts of jus¬ 
tice is peculiarly essential in a limited constitution. 
By a limited constitution, I understand one which 
contains certain specified exceptions to the legisla¬ 
tive authority; such for instance, as that it shall pass 
no bills of attainder, no ex-post-facto laws, and the 
like. Limitations of this kind can be preserved in 
practice in no other way than through the medium 
of courts of justice, whose duty it must be to declare 
all acts contrary to the manifest tenor of the consti¬ 
tution void. Without this, all the reservation of par¬ 
ticular rights or privileges would amount to nothing. 

“This independence of the judges is equally requi¬ 
site to guard the constitution and the rights of indi¬ 
viduals from the effects of those ill humors, which 
the arts of designing men, or the influence of particu¬ 
lar conjunctures, sometimes disseminate among the 
people themselves, and which, though they speedily 
give place to better information, and more deliber- 


19 


ate reflection, have a tendency in the meantime to 
occasion dangerous innovations in the government 
and serious oppressions of the minor party in the 
community. 

“Upon the whole, there can be no room to doubt 
that the convention acted wisely in copying from 
the models of those constitutions which have estab¬ 
lished good behavior as the tenure of their judicial 
officers, in point of duration; and that so far from 
being blamable on this account, their plan would 
have been inexcusably defective, if it had wanted 
this important feature of good government. The 
experience of Great Britain affords an illustrious 
comment on the excellence of the institution.” 

From these considerations, it would seem to appear 
that at the time of the adoption of the Federal Consti¬ 
tution, an independent judiciary was universally con¬ 
sidered essential to a republican form of government. 
To attain and safeguard this end, two corollary princi¬ 
ples were adopted. Pressing forward the precedent 
then in existence in England, and following that of each 
of the thirteen colonies, there was a severance of the 
judicial from the other branches of government. And 
adopting the rule then prevalent in England, and the 
colonies, other than New Jersey and Pennsylvania, the 
tenure was made during good behavior. 

Necessarily, in the consideration of a question such 
as this, there will exist between that form of govern¬ 
ment conceded to be republican, and that form admit¬ 
tedly not, a wide border-land. Any given principle 


20 


will be assigned to the one realm or the other as the 
individual mind concedes or negatives its importance. 
To some, an executive elected for life, would appear not 
essentially destructive of a republican form of govern¬ 
ment, when the people retained all other powers. 
To others, the merging of the executive and legislative, 
and the administration of government by committees of 
one general assembly would seem to violate no princi¬ 
ple of republicanism, while still others would no doubt 
contend that the decision of all causes by committees 
of a State Senate, during the vacation of that body, was 
in violation of no recognized republican maxim. So, 
the ultimate power residing in the people, the abolition 
of the legislative branch of the government, and the 
reference to the whole electorate of every proposed law 3 
as is the present custom of one of the smaller cantons 
of Switzerland, would appear to some to harmonize 
with present institutions. There could doubtless be 
found political thinkers who would affirm the power of 
the people to do away with the courts and submit, at 
least all great causes, to the decision of a majority of 
the citizens. 

This chaos of political thought, is believed to be the 
result of a failure to bear in mind the essential distinc¬ 
tions between republican and democratic forms of gov¬ 
ernment. Whatever may be the right of a majority of 
the people of the whole United States, or of the people 
of the constitutional quota of States to change, modify 
or amend their present form of government, it is ultra 


21 


vires the people of any particular State to make it other 
than republican in form. 

While the States reserved to themselves all the pow¬ 
ers not granted to the general government, and while 
the general government has only delegated powers, and 
such powers as are necessary to the enjoyment of those 
delegated, the right of the several States to so change, 
modify or amend their systems as to make them other 
than republican in form, is one which they have relin¬ 
quished, and the authority of the general government 
to guarantee to the several States a republican form of 
government is a power which has been transferred to 
it by each of the States, and such a power as carries 
with it all powers necessary to its enforcement. 

But what are the tests? By what standard is any 
particular principle to be measured? In what scales 
are any proposed changes or modifications to be 
weighed? And who is to be the ultimate judge? 
These questions, it is believed, are not so difficult as 
they appear. As before pointed out, the standard is 
to be that which existed at the time of the adoption of 
the Constitution. The scales will be found in the opin¬ 
ions and contemporaneous precedents of the same pe¬ 
riod. The test is to be this: Was the principle embod¬ 
ied in the proposed change one which at the time of the 
adoption of the Constitution was accepted as one of the 
cardinal and necessary elements of a republican form 
of government, without which such form could not well 
exist? If so, then it is one of the essentials of such a 


22 


form of government and must not be violated. The 
independence of the judiciary is believed to be such a 
principle. As to the ultimate judge: Upon the appli¬ 
cation of a new State; Congress—upon the attempt of 
an existing State to violate the inhibition; the Federal 
courts, through decrees holdine the proposed changes 
void in their operations upon individuals. 

As between the prior decision of Congress, and the 
subsequent contrary judgment of the Supreme Court, 
the latter must of course prevail, as that tribunal is the 
final guardian of the republic. And in this connection, 
if there is merit in the foregoing considerations, it is 
to be earnestly hoped that Congress will compel Ari¬ 
zona to modify her Constitution so as to eliminate this 
objectionable feature, thereby giving to the Supreme 
Court in its ultimate consideration of the question com¬ 
ing from California the very persuasive precedent of 
the legislative branch of the government upon this im¬ 
portant subject. Nay, the question being one of politi¬ 
cal rather than judicial significance, the careful consid¬ 
eration of Congress is all the more important, as the 
admission of Arizona under her present proposed con¬ 
stitution might be considered by the Supreme Court as 
a decision binding upon it that the provision under dis¬ 
cussion violated no republican principle. 

That the recall of the judges not only tends to weaken 
their necessary independence but is directly destructive 
thereof, can be easily demonstrated. Such a measure 
would place the judges and a majority of the electorate 


23 


in the relation to each other of master and servant. 
When such a relationship exists and is determinable at 
the will of the master, the servant is without independ¬ 
ence. He must obey, not the dictates of his own con¬ 
science, but the arbitrary will of his employer, upon 
penalty of the immediate determination of the relation. 
The case is otherwise, if the relation is to exist for a 
given time; then the servant so long as he performs his 
duty, is protected from any unjust or arbitrary demands. 

The election of judges for stated terms lessens their 
independence of a majority as their term of office draws 
to a close. The power of their immediate recall de¬ 
stroys their independence. As it would be in the teeth 
of human nature to expect a servant, desirous of con¬ 
tinuing his employment, to disobey the imperative com¬ 
mands of his master, so it would indeed be requiring 
too much of a judge, who desired to continue in office, 
to expect him to render an unpopular decision, or one 
which he believed to be such. 

If then, the measure under discussion is completely 
subversive of the independence of the judiciary, and if 
their independence was accepted, at the time of the 
adoption of the Constitution as one of the fundamentals 
of a republican form of government, without which it 
would not continue to exist, it would seem to follow 
that the power of recall of the judges is within, at 
least, the spirit of the inhibition of the clause first 
quoted, if not its very terms. 


24 


Nor is the measure capable of justification upon the 
argument of its advocates. Their whole theory of right 
lies in the following reasoning: 

“The people are supreme. What they will is law. 
The judges are the servants of the people, employed 
by the latter and holding office at their will. There¬ 
fore, the master, the people, has the inherent right 
to discharge the servant, the judges, at pleasure.” 

The conclusion would seem logically to flow from 
the premises. Nor is it with the former so much as 
with the latter that the fault lies. When it is said that 
the people are supreme; that they employ the judges 
and stand towards them in the relation of a master to 
a servant, what is meant is, the majority of the people. 
Herein lies the error. The judges are not the servants 
and agents of the majority. The judges are the serv¬ 
ants of both the majority and the minority, and must 
of necessity be independent of each. 

Any rule of might is a tyranny; whether it be in the 
form of an emperor, dictator, oligarchy, or democracy. 
The unrestrained rule of the majority is as objectionable 
as that of an individual; it is more so, because it has all 
the evils of the former with none of the efficiency of 
the latter. This country is ruled by laws and not by 
majorities. True the laws are made by majorities, but 
there are limits beyond which they may not go. Every 
citizen has certain inherent and fundamental rights, 
which can be taken from him neither through legisla- 


25 


tive enactments nor by constitutional amendments sup¬ 
ported by no matter how great a majority. 

Life, liberty and the pursuit of happiness, the right 
of contract and private ownership of property, when not 
used to the detriment of others, of procreation, of in¬ 
violability of person and family—such rights as these 
are not justly dependent for protection upon constitu¬ 
tions; they are fundamental, inherent. Without their 
adequate protection, no government can long exist. 
Certainly no majority, however great, has the right to 
single out the individual and take from him these in¬ 
herent rights. Upon no theory could such action be 
justified. 

It is one of the peculiar functions of a judge in a 
State governed by laws and not by men, to protect the 
minority, or the individual, as the case may be. Though 
chosen by the majority, or by some person or persons 
to whom the power of selection has been delegated, 
they cease, upon induction into office, to become the 
mere servants at will, of those by whom they were se¬ 
lected, nay, they never were their servants. The right 
of selection in no sense carries with it such right of 
domination as was attempted by Charles I. Upon se¬ 
lection, the judges become the servants of the whole 
people, not of the majority or class by whom they may 
have been chosen. They represent the minority, the 
weakest class in society; the humblest individual, just 
as much as the dominant political party, the laboring 
or moneyed classes, or the most potent members of the 


26 


community. During their term of office they are justly 
answerable to no one. 

A powerful minority may well trust the selection of 
the judges to a majority; but the domination of this ma¬ 
jority after selection is quite another matter. This is 
tyranny, and as Montesquieu says, “the end of all 
things Such a practice, when taken advantage of by 
majorities, as it inevitably must be, can be maintained 
only by arms, and this power does not always lies in 
majorities. It is justifiable only as might can be jus¬ 
tified. 

Nor can any justification of the proposed measure 
be found in the doctrine of expediency. In limine let 
it be inquired, what will be accomplished by the pro¬ 
posed change that is deemed expedient? 

Will the respect of the community for the judges, a 
situation so earnestly to be sought, be increased? Al¬ 
ready there has appeared a very wide discrepancy, in 
the esteem entertained by the general public for the 
State tribunals as compared with that held for the 
National courts. Why? Obviously for two reasons: 
The comparative attainments of the presiding judges, 
and the curtailed independence of the State tribunals 
by reason of the selection of their judges for short terms. 

Will the proposed measure induce gentlemen of 
greater attainments to seek election to the bench? It 
is believed such will not be the case. What man wor¬ 
thy of the name would submit himself to the alterna¬ 
tive of deciding a cause contrary to his conscience, or 


27 


suffering the disgrace of a peremptory recall by his 
fellow citizens? How can an increase of wholesome 
respect be attained by a further curtail of that inde¬ 
pendence, the want of which has already induced dis¬ 
paragement? 

Will the corruption charged to exist be eliminated? 
Where is this corruption? Is there no evidence avail¬ 
able? Then, is it the purpose to convict judges with¬ 
out evidence? Is suspicion to take the place of facts? 
Surely this would seem to be a novel American idea. 

Will the alleged corporate control of the judiciary 
be abolished? Where does it exist to-day? In the 
Federal or the State tribunals? Certainly from the 
recent decisions of the former, it does not seem to be 
there intrenched to any great extent. If in the latter, 
how will the evil be remedied? The judges are now 
selected by the majority of the people. If they are 
now unable to select judges free from corporate influ¬ 
ence, may we expect a resultant improvement in the 
exercise of choice, by conferring the power of recall? 
Why? 

How is the fact of a leaning of the judge toward cor¬ 
porate interests to be ascertained? Is it to be based 
upon errors appearing in his judgments? Or is it to 
rest solely upon the fact that the decision was in favor 
of the corporation? If the former, who is to judge of 
the existence of the errors? The lawyers who lost the 
case, or those who won? As in any other branch of 
science, the opinion only of the educated therein will 


28 


be worthy of consideration. Whose interpretation will 
be accepted? If the latter, why not proceed at once 
to the division of corporate property without pursuing 
the tedious process suggested? 

Are the opinions of expects upon the expediency of 
this measure desired? If there is one man to whom 
more than any other this age owes a debt of undying 
gratitude for the preservation of the Republic when 
others in the blindness of political fury were contending 
for principles which would have guaranteed its early 
dissolution, that man is John Marshall. Except for the 
judgments of this great man the blessings of liberty, for 
the perpetuation of which the Union was established, 
would long since have been swept away by the sudden 
violence of majorities. 

Of all the experts who could be called to give opinion 
upon this subject, he would seem to command the great¬ 
est consideration. His patriotism was never ques¬ 
tioned. His learning, while perhaps not so scintilla¬ 
ting as that of others, was more profound. His lumi¬ 
nous judgments give more than ample evidence of the 
depth of his knowledge of those checks and balances 
necessary to the preservation of liberty and the guaran¬ 
tee of human progress. The breadth and profundity 
of his character, the exalted atmosphere in which he 
lived, his many years’ experience as a judge, would 
seem to render his opinions upon the subject conclu¬ 
sive, until overcome by clear and convincing reasoning 


29 

based upon something more substantial than mere spec¬ 
ulation. 

When his inspiring career was drawing near its close, 
he was persuaded to become a member of the Virginia 
Constitutional Convention of 1829. This was a re¬ 
markable assembly. It was presided over by James 
Monroe escorted to the chair by Madison and Marshall. 
Party spirit ran high. Passions were much inflamed. - 
One of the principal questions presented was the tenure 
by which judges should hold their office. Marshall 
was at this time in his seventy-fifth year. For nearly 
a third of a century he had occupied the high position 
of Chief Justice. He had considered all manner of 
causes, he had observed all manper of men. Soldier, 
lawyer, statesman, diplomat, patriot, and himself the 
greatest judge with which Almighty God had ever 
adorned a bench or blessed a country, who than Mar¬ 
shall knew better whereof he spoke. 

With that great earnestness which had ever charac¬ 
terized his life, he said: 

“The argument of the gentleman goes to prove 
not only that there is no such thing as judicial in¬ 
dependence, but that there ought to be no such 
thing; that it is unwise and improvident to make 
the tenure of the judge’s office to continue during 
good behavior. Advert, sir, to the duties of a judge. 
He has to pass between the government and the 
man whom that government is prosecuting—be¬ 
tween the most powerful individual in the com- 


30 


munity and the poorest and most unpopular. It is 
of the last importance that in the performance of 
these duties he should observe the utmost fairness. 
Need I press the necessity of this? Does not every 
man feel that his own personal security and the 
security of his property depends upon that fairness? 
The judicial department comes home in its effects to 
every man’s fireside; it passes on his property, his 
reputation, his life, his all. Is it not to the last 
degree important that he should be rendered per¬ 
fectly and completely independent, with nothing to 
control him but God and his conscience? . . . 

I acknowledge that in my judgment the whole good 
which may grow out of this convention, be it what 
it may, will never compensate for the evil of chang¬ 
ing the judicial tenure of office. ... I have 
always thought from my earliest youth till now that 
the greatest scourge an angry Heaven ever inflicted 
upon an ungrateful and sinning people was an 
ignorant, a corrupt or a dependent judiciary.” 

With Jefferson, the idol of a new-born and triumph¬ 
ant democracy, little doubt can be entertained by those 
familiar with the history of that day as to the fate of 
the Federal judiciary had the power now contended for 
then existed. 

Speaking of the Supreme Court, Jefferson said: 

“An opinion of the court is huddled up in con¬ 
clave, perhaps by a majority of one; delivered as 
unanimous, and with the silent acquiescence of lax 
or timid associates, by a crafty Chief Judge who 


3i 


sophisticates the law to his own mind by the turn 
of his own reasoning.” 

“The very idea of cooking up opinions in con¬ 
clave begets suspicions that something passes which 
fears the public ear.” 

Suggesting the remedy: 

“A strong protestation of both Houses of Con¬ 
gress that such doctrines advanced by the Supreme 
Court are contrary to the Constitution, and if after¬ 
wards they relapse into the same heresies, impeach 
and set the whole adrift.” 

Again: 

“The great object of my fear is the Federal 
judiciary. That body, like gravity, ever acting 
with noiseless feet and unalarming advance, gaining 
ground step by step, and holding what it gains, is 
ingulfing insidiously the special governments into 
the jaws of that which feeds them.” 

Blinded by party passion, he seems at times to have 
doubted even Marshall’s integrity. In 1795, he speaks 
of Marshall’s “profound hypocrisy.” In 1810, he 
spoke of, 

“The ravenous hatred which Marshall bears to 
the government of his country; the cunning and 
sophistry within which he is able to enshroud him¬ 
self.” . . . “His twistification in the case of 

Marbury, in that of Burr, and the late Yazoo case, 
shows how dextrously he can reconcile law to his 
personal biases.” 


32 


In a letter to Gallatin, he speaks of the “deep malig¬ 
nity of Marshall’s mind.” In a letter to William B. 
Giles, referring to the Burr case, he said: “The tricks 
of the judges to force trials before it is possible to col¬ 
lect the evidence.” . . . “The presiding judge 

meant only to throw dust in the eyes of his audience.” 

And with irony: “All the principles of law are to 
be perverted which would bear on the favorite offenders 
who endeavor to overrun this odious Republic.” 

During the trial of Mr. Justice Chase, Giles of Vir¬ 
ginia, one of Jefferson’s henchmen in the Senate, con¬ 
tended that a judge might be removed on impeachment 
for mere error in judgment, or because he differed in 
political opinion from the President or Congress. In 
1807, after the Burr trial, motions were made in each 
branch of Congress to so amend the Constitution that 
the judges of the United States Courts would hold 
office for a term of years, and be removable by the 
President on address of two-thirds of both Houses. 
In 1822 an amendment to the Constitution was pro¬ 
posed giving complete jurisdiction to the Senate in any 
case to which a State was a party, an adopted method 
of expressing dissatisfaction in the great judgment of 
Cohens vs. Virginia, now regarded as one of the founda¬ 
tion stones of proper constitutional construction. 

Had the power of recall existed, John Marshall 
would, no doubt, himself have been removed. History 
would have justified him, but what would have become 
of the Republic? 


P D 1U.4 


33 


That the proposed measure is at best a mere experi¬ 
ment in government will be admitted. Going as it 
does to the very root of what is believed to be one of 
the essentials of free institutions, it must be conceded 
to be a most dangerous one. To many it seems per¬ 
nicious—a step in the very opposite direction from 
those safeguards, checks and balances believed to be so 
necessary to protect the whole people from the sudden 
and violent turbulence of a temporary majority. It has 
been well said: “Popular sentiment is proverbially 
variable, and is subject to constant alterations; to-day 
the multitude cry, ‘Hosanna!’ and to-morrow, 'Crucify 
Him /" 

The situation could not be better described than in 
the words of Aristotle: 

“The people, who is now a monarch, and no 
longer under the control of law, seeks to exercise 
monarchical sway, and grows into a despot; the 
flatterer is held in honor; this sort of democracy 
being relatively to the other democracies what 
tyranny is to other forms of monarchy. The spirit 
of both is the same, and they alike exercise a des¬ 
potic rule over the better citizens. The decrees of 
the demos correspond to the edicts of the tyrant; and 
the demagogue is to the one what the flatterer is to 
the other. Both have great power—the flatterer 
with the tyrant, the demagogue with democracies. 
They make the decrees of the people override the 
laws, and refer all things to the popular assembly. 
And therefore, they grow great, because the people 


34 


have all things in their hands, and they hold in their 
hands the votes of the people who are too ready to 
listen to them. Further, those who have any com¬ 
plaint to bring against the magistrates say, ‘let the 
people be judges’; the people are too happy to ac¬ 
cept the invitation; and so the authority of every 
office is undermined. Such a democracy is fairly 
open to the objection that it is not a constitution at 
all; for where the laws have no authority, there is 
no constitution.” 

Surely, if a change is to be made in the existing sys¬ 
tem prevalent in the vast majority of States, it would 
seem it should be in the direction of granting to the 
judges a greater independence of spirit, thereby lifting 
them to the plane of high efficiency now occupied by 
the Federal Judiciary, rather than a still further wholly 
useless and unnecessary debasement. 


ALBERT FINK. 
























































































































































































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